mission are actuated by unworthy or improper motives, it will be a sufficient reason for giving the carriage of it to other persons.

SECTION IV.

Of the Execution of the Commission of Lunacy.

WHEN the commission is to be executed, the commissioners, in pursuance of several statutes, the words of the commission, and the standing orders of the Chancellor, issue their precept to the sheriff, requiring him to cause a jury of good and lawful men of his county to come before them at a certain time, and in a certain place, to inquire upon their oaths of the matters and things which shall be given them in charge, by virtue of the commission (d).

By statute 1 Hen. 8, c. 8, s. 3, it is directed, that every escheator and commissioner shall sit in convenient and open places, according to the statutes (e) theretofore made; and that the said escheators and commissioners shall suffer every person to give evidence openly in their presence, to such inquest as shall be taken before any of them, upon pain of 40%. And these statutes extend to inquisitions taken before sheriffs (f). No inquest can be taken upon the oaths of fewer than twelve jurymen; if twelve jurymen, however, concur in the verdict, it will be sufficient, although others refuse to join (g).

The common order of the Chancellor directs the commission of lunacy to be executed in or near the place of abode of the supposed lunatic, and a jury of the county and of the neighbourhood where the supposed lunatic lives to be returned to inquire of the lunacy. The general rule is, where

(d) See Appendix.

(e) 34 Edw. 3, c. 13; 36 Edw. 3, st. 1, c. 14; 23 Hen. 6, c. 17.

(f) 4 Rep. 58 a.

(g) Ex parte Wragg, 5 Ves. 450.

the party is resident within the jurisdiction of the Chancellor, not to direct the commission to be executed at any other place than the place of residence of the supposed lunatic (h). There are exceptions to this rule, but some satisfactory ground must be made out in evidence by the party contending for such an exception. In one case, where the supposed lunatic had a town and country residence, both in the county of Middlesex, the commission was directed to be executed at or near either of such places of abode as the commissioners should direct (i).

In a case where a petition prayed that a commission of lunacy, which had issued into Devonshire, might be executed in London, where the alleged lunatic had been about six months; having been removed, as was represented, for the benefit of advice, from temporary residences at Exeter and Teignmouth, his previous residence having been in his father's family in Devonshire-Lord Eldon observed, that, without undertaking to say that there could be no exception to the rule last laid down, he had not found any instance in fact where the party was within the realm; and that motives of convenience, with reference to the attendance of witnesses, much more of counsel, ought not to form an exception. His Lordship said, that it was a most improper proceeding, to bring a person into Middlesex for the purpose of executing the commission there; and expressed a doubt, whether he had any right to make the alteration as to the place of executing the commission, after it had issued (k).

In a recent case, Lord Chancellor Brougham took into consideration the convenience of the attendance of witnesses upon the inquiry, and directed the supposed lunatic to be conveyed from London, where he had been some time, to the place of his former residence, where the commission was directed to be executed (1).

If a man, resident in the city of London, were conveyed by

(h) Ex parte Southcot, 2 Ves. sen. 401; Ex parte Baker, 19 Ves. 340; S. C. Coop. C. C. 205.

(i) In re Jervis, 14 Aug. 1829.

(k) Ex parte Baker, 19 Ves. 340. S. C. Coop. C. C. 205.

(1) In re Green, 8 April, 1831.

force into Essex, he would still, for the purpose of executing a commission, be considered as resident in the city; for a man cannot be said to reside in a place to which he has been carried while he had not mind enough to intend a change of residence. Where the object of inquiry is rather to ascertain the time at which the lunacy commenced, than the fact of lunacy, it is more material that the commission should be executed among persons who knew the state of the individual prior to the accident, to which by the witnesses on one side the lunacy is imputed (m).

The principle, on which the Crown extends its protection to lunatics, requires an examination into the circumstances of competence or incompetence, under which the lunatic has performed acts affecting his property; and therefore it is usual, in all such cases, when it appears that the lunacy has been of some duration, to inquire from what period it commenced (n).

There are instances of inquisitions having been quashed, on the ground that the commencement of the lunacy was not carried back so far as was warranted by the evidence. Thus, in one case, where it appeared by a petition, that the party who had been found a lunatic by inquisition had been idiotic and of unsound mind from his infancy, and had done or acquiesced in several acts affecting his property,. and the jury had carried back the lunacy only for the period of six years, no committees having been appointed, the inquisition was quashed, and a new one directed to issue; and it was ordered that the brother of the lunatic, and the petitioners for the commission, should lay before the commissioners and jury such evidence as they might be able, touching the state of mind of the lunatic, from the earliest period of his life down to the time of executing the commission (o).

And in another case, where the lunatic had executed deeds prior to the period at which the jury found the lunacy to have commenced, the inquisition was quashed, on the

(m) Ex parte Smith, 1 Swanst. 6.

(0) In re Wooler, 8 Aug. 1825.

(n) Ibid.

H

ground, that the finding of the jury was not carried back so far as was warranted by the evidence; and a new commission was directed to issue (p).

The commissioners and jury have a right to inspect and examine the lunatic, and, it is believed, most commonly do so. The commissioners have also power to order the lunatic to be produced before them, without the prior order of the Lord Chancellor; and if the persons, in whose custody the lunatic is, refuse to produce him, they are liable to the censure of the Court, and to the payment of costs (q). The disobeying the Chancellor's order for production of the supposed lunatic is a contempt punishable by commitment to the Fleet (r).

An order may be obtained for allowing access to be had to a person supposed to be a lunatic, for the purpose of enabling him and his friends to oppose the commission. Thus, in a case where a commission had been issued against a party who was in confinement, and access to him had been denied; on the petition of his daughter and her husband, stating that they believed that they could produce competent witnesses to prove that the party supposed to be a lunatic was of sound mind, and able to manage his own affairs, and that they disapproved of the issuing of the commission, on the ground that the same was not necessary, and would be prejudicial to the alleged lunatic, his family, and affairs-The Lord Chancellor ordered that the petitioners and their solicitors, and such medical advisers as they might think fit to appoint, should have access to and be at liberty to visit the party supposed to be a lunatic, at all seasonable times prior to and during the execution of the commission of lunacy, for the purpose of ascertaining the actual state of his mind, and his competency to manage his affairs; and the persons having him in custody were restrained by the order from interfering with or interrupting the petitioners, or their solicitors, or medical advisers, in such visits, and were further restrained from removing or (r) Lord Wenman's case, 1 Peere Wms. 702.

(p) In re Warren, 17 April, 1824. (q) Ex parte Southcot, 2 Ves.

sen. 404.

concealing him from the petitioners, or their solicitors, or medical advisers (r).

In one case, where the wife of the supposed lunatic opposed the issuing of the commission, an order was made. that she should be at liberty to attend the execution of the commission by counsel, if she thought fit (s).

In another case, the Lord Chancellor ordered any person or persons in whose custody or power the supposed lunatic might be, to produce him at the execution of the commission of lunacy, or on any adjournment thereof, to be inspected and examined, as often as there might be occasion, before the commissioners and jury (t).

And, sometimes, a further order is added, that notice of the time and place of executing the commission be given to the supposed lunatic, or some other person on his behalf (u).

If the persons who have the non compos in their power carry him out of the Chancellor's jurisdiction, to avoid producing him, it has been said, that the commission may be executed in his absence (v). But, where the party had been secreted, and the jury required his production, it was one ground for superseding the commission and issuing a new one (w).

A commission may be directed against a non compos abroad, and the inquisition shall be taken, not where he last resided, but where his mansion house or other property is situated. On a petition for a commission of lunacy against a person who was positively sworn to be a lunatic then resident in Flanders, Lord Hardwicke said, there can be no good reason, why, if any subject having an estate in England happens to be an idiot or lunatic, but is out of the kingdom, there can be no inquiry here. No inquiry can be made beyond sea, for it is not to be executed by the commissioners only, as in taking an answer or assigning a guardian, which may be executed beyond sea, but there must be a jury to inquire of the fact; which must be of a county

In re Clement, 30 July, 1831.

(v) Hals's case, cited 2 Ves. sen.

404.

(r) In re Fletcher, 25 April, 1832. (8) In re Clement, 30 July, 1831. (t) In re Holmes, 13 Dec. 1827. (u) In re Jervis, 14 Aug. 1829;

(w) In re Hals, 30 Nov. 1743.